Monthly Archives: August 2017

In the Supreme Court of Appeal case, Land and Agricultural Bank of South Africa v Parker, the dilemma of insufficient separation between the control and enjoyment of trust assets came to the forefront.

To address this issue, Cameron JA mentioned, obiter dictum, that the problem at hand may possibly be addressed as follows:

…by insisting on the appointment of an independent outsider as trustee to every trust in which (a) the trustees are all beneficiaries and (b) the beneficiaries are all related to one another.

The Master of the High Court has now taken positive steps to implement the above obiter dictum by issuing a directive in March 2017, which requires that all new trusts registered with the Master, which are so-called family business trusts, must have an independent trustee.

The independent trustee must sign a sworn affidavit in which he/she confirms that he/she has: no family relation or connection, by blood or other, to any of the existing or proposed Trustees, beneficiaries or founder of the trust.

We therefore strongly advise that you choose your independent trustee carefully as he/she will form part of all future decisions made by the trustees.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

“…in this world nothing can be said to be certain, except death and taxes”

Benjamin Franklin, in 1789

Have you considered seeing a professional regarding your Estate Planning?

Estate Duty is levied at 20% on all property in your estate over the cumulative value of R 3 500 000.00. Unfortunately an estate is not only subject to Estate Duty, but also Capital Gains Tax on certain assets. This could have a negative effect on the liquidity of your estate.

Proper Estate Planning, done timeously, can limit the exposure of your estate to the legal minimum.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Is your current Will valid? Do you have your originally signed Will? Is it kept in a safe place? Do you know who your executor is? Are the provisions in your Will feasible?

All these questions are of utmost importance to ensure that your wishes are adhered to and your loved ones are able to avoid undue frustration during their time of mourning.

The Testator or Testatrix typically have good intentions when drafting certain provisos, but these often lead to unforeseen consequences.

The basic requirements for ensuring that you have a valid Will are set out in the Wills Act 7 of 1953.

Be sure to take note of the following formalities:

The Testatoror Testatrix must sign at the end of the Will;

The Will must be signed in the presence of at least two competent witnesses, who are present at the same time and the witnesses must:

Be competent persons (older than 14);

Sign the Will in the presence of the Testatoror Testatrix and each other;

Acknowledge the signature of the Testatoror Testatrix, not the content;

If the Will has more than 1 page:

The Testatoror Testatrix needs to sign each page;

The Testatoror Testatrix needs to sign the last page at the end;

The witnesses need to sign only the last page.

If the Will is signed by the Testatoror Testatrix, by the making of a mark or by some other person in the presence and by the direction of the Testatoror Testatrix – additional formalities will apply.

The person who writes or witnesses a Will is disqualified from receiving any benefits from the Will. The executor, appointed trustee or guardian will also be disqualified to act should he/she or his/her spouse sign as witness.

We are able to assist and ensure that your Will gives effect to your wishes.

To draft a Will, update your Will or receive sound advice, contact the experts:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)